ABSA Bank v Farrar (94759/2015) [2023] ZAGPPHC 1123 (30 August 2023)

ABSA Bank v Farrar (94759/2015) [2023] ZAGPPHC 1123 (30 August 2023)

The court found that the applicant retained ownership of the motor vehicle under the instalment sale agreement until the last instalment was paid. The respondent failed to avail herself of the remedies in the section 129 notice, resulting in cancellation of the agreement. The applicant's claim is for vindication of...

Source-derived case information.

Citation
[2023] ZAGPPHC 1123
Parties
Applicant: ABSA Bank; Respondent: Rynette Farrar
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 August 2023
Case Number
94759/2015
Procedural Posture
Civil Application / Final Order After Opposed Application and Counter Application
Outcome
The applicant's application for return and sale of the motor vehicle was granted. The respondent's counter-application was dismissed with costs.
Judges
N P Mngqibisa-Thusi
Legal Topics
Instalment Sale Agreement, Prescription Act, National Credit Act, Vindicatory Action, Summary Judgment, Repossession
Banking and Finance Civil Procedure Instalment Sale Agreement Prescription Act National Credit Act Vindicatory Action Summary Judgment Repossession

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Summary, issues, holding and outcome

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Parties

ABSA Bank

Applicant

Rynette Farrar

Respondent

Procedural Posture

Civil Application / Final Order After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the applicant's claim for return of the motor vehicle has prescribed.
  2. 2 Whether the respondent acquired ownership of the vehicle by prescription.
  3. 3 Whether the instalment sale agreement was reinstated after payment of arrears.

Ratio Decidendi

The court found that the applicant retained ownership of the motor vehicle under the instalment sale agreement until the last instalment was paid. The respondent failed to avail herself of the remedies in the section 129 notice, resulting in cancellation of the agreement. The applicant's claim is for vindication of a real right, not a personal debt, and thus the prescription period is 30 years, not three years. The respondent's argument that she acquired ownership by prescription after three years was rejected, as the law provides for a 30-year period for acquisitive prescription of real rights. The respondent's payment of arrears did not reinstate the agreement, as termination had...

Court Disposition

The applicant's application for return and sale of the motor vehicle was granted. The respondent's counter-application was dismissed with costs.

Orders

  • The respondent is directed to deliver the 2008 Toyota Prado VX 4.0 V6 A/T to the applicant's designated premises after arrangements with the applicant's attorneys.
  • If the respondent fails to comply within five days of service of the order, the sheriff is authorised to take possession of the vehicle and deliver it to the applicant.